PETER FREEMAN CBE QC (HON) (Chairman) CLARE POTTER JOANNE STUART OBE. Sitting as a Tribunal in England and Wales COLT TECHNOLOGY SERVICES

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Neutral citation [2013] CAT 29 IN THE COMPETITION APPEAL TRIBUNAL Victoria House Bloomsbury Place London WC1A 2EB

Case No.: 1212/3/3/13

26 November 2013 Before:

PETER FREEMAN CBE QC (HON) (Chairman)

CLARE POTTER JOANNE STUART OBE

Sitting as a Tribunal in England and Wales BETWEEN:

COLT TECHNOLOGY SERVICES

Appellant -supported by-

EE LIMITED

HUTCHISON 3G UK LIMITED TALKTALK TELECOM GROUP PLC

VERIZON UK LIMITED VODAFONE LIMITED Interveners - v - OFFICE OF COMMUNICATIONS Respondent -supported by- BRITISH TELECOMMUNICATIONS PLC Intervener Heard at Victoria House on 14 - 17 October 2013

_____________________________________________________________________ JUDGMENT

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APPEARANCES

Mr Kieron Beal QC (instructed by Baker & McKenzie LLP) and Mr Richard Pike (of Baker & McKenzie LLP) appeared for Appellant.

Mr Josh Holmes and Mr Ravi Mehta (Instructed by the Office of Communications) appeared for the Respondent.

Mr Daniel Beard QC and Mr Robert Palmer (instructed by BT Legal) appeared for the Intervener, British Telecommunications PLC.

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1. This case is about the remedies which are appropriate to address the market power of British Telecommunications plc (“BT”) in relation to some aspects of business communications, and in particular whether BT should be required to make its ducts and unlit optical fibres available to competing business communications providers. It is an appeal brought by Colt Technology Services (“Colt”) under section 192(2) of the Communications Act 2003 (the “Act”) against the determination by the Office of Communications (“OFCOM”) published in its statement entitled “Business Connectivity Market Review” (the “Statement”) of 28 March 2013. In the Statement, OFCOM found, inter alia, that BT had significant market power (“SMP”) in various business connectivity markets.

2. Colt is a communications provider (“CP”), which focuses on providing integrated communications, IT and network services and solutions to business. According to Colt’s pleadings, it has a 22-country, 43,000 kilometre network that includes metropolitan area networks in 39 European cities. Its portfolio includes telephony, interactive voice, private networking, internet solutions, consultancy services and modular data services. Colt has two methods for connecting customers: (i) “on-net” using its own network infrastructure; and (ii) “off-net” using leased lines purchased at the wholesale level from other CPs.

3. The Statement sets out OFCOM’s conclusions following its review of markets for the supply of business connectivity services, which carry voice and/or data traffic between business sites to enable all types of communications within an organisation. OFCOM’s review (the Business Connectivity Market Review or “BCMR”) focussed on the retail and wholesale markets for leased line services in the UK.

4. Colt, supported by an intervening group of Communications Providers1 (the “CP Group”), challenges one aspect only of the Statement. That is, OFCOM’s decision

1

EE Limited, Hutchison 3G UK Limited, TalkTalk Telecom Group PLC, Verizon UK Limited and Vodafone Limited

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not to impose a “passive remedy” on BT in the markets for leased lines services (the “Decision”). Passive remedies might involve giving a CP access to BT’s physical network assets, such as its ducts and poles or unlit (‘dark’) fibre. They can be distinguished from “active remedies”, which refer to regulated access to communication services which BT (or another regulated firm) provides using infrastructure including electronic equipment.2 Colt argues that granting access to this infrastructure would enable it and other CPs to build their own network infrastructure at a fraction of the cost of constructing their own, duplicative, civil engineering infrastructure.

5. Colt claims that OFCOM erred in deciding not to impose passive remedies in this case and, that the contested Decision is flawed by errors of law, errors of fact and/or errors in the exercise of OFCOM’s discretion.

6. On 24 May 2013, Verizon UK Limited and Vodafone Limited brought a separate challenge to another aspect of the Statement (Case No.: 1210/3/3/13).3 As that appeal raised specified price control matters within the meaning of section 193(1) and (10) of the Act and rule 3 of the Competition Appeal Tribunal (Amendment and Communications Act Appeals) Rules 2004 (S.I. No. 2068 of 2004), the Tribunal referred it to the Competition Commission for determination. By Order of 22 July 2013, the Tribunal directed the Competition Commission to determine the issues contained in the reference on or before 23 December 2013. The matters raised in Case No.: 1210/3/3/13 are independent of those raised in Colt’s appeal; accordingly, we do not address the Verizon/Vodafone appeal further in this judgment.

7. This judgment uses a number of defined terms and abbreviations, which are defined when first used. The annex to the judgment sets out a composite glossary of those defined terms. 2 _{Statement at [8.10]} 3 http://www.catribunal.org.uk/237-8026/1210-3-3-13-1-Verizon-UK-Limited-and-2-Vodafone-Limited.html

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II. OFCOM’S STATEMENT

8. The Statement sets out OFCOM’s conclusions following its review of the extent of competition in the provision of leased lines in the UK. OFCOM last reviewed these markets in 2007/8 and set out its findings in statements published in December 2008 and February 2009.4

9. In 2010, OFCOM had also reviewed the Wholesale Local Access market (the “WLA Review”) and had imposed amongst others a limited form of passive remedy called Passive Infrastructure Access or “PIA”. This required BT to provide access to its ducts and poles (not fibres) to allow CPs to deploy networks to support superfast broadband services in the residential sector but not for leased lines.5

10. In its introduction to the BCMR Statement, OFCOM explained:

“1.2 Leased lines provide dedicated symmetric transmission capacity between fixed locations, and their overall value exceeds £2bn per annum in the UK. They play an important role in business communications services and are used to support a wide variety of applications, both in the private and public sectors. They also play a significant role in delivering fixed and mobile broadband services to consumers, because communications providers (CPs) use them extensively in their networks.

1.3 BT remains by far the largest wholesale supplier of leased lines in the UK. For illustrative purposes, if we consider all wholesale circuits, we estimate that BT has a share of 82% of volumes. The majority of CPs remain reliant on BT’s network in providing services to their customers.”

A. The consultation process

11. As part of its market review, OFCOM consulted as follows:

(a) published a Call for Inputs (“CFI”) in April 20116, which sought stakeholders’ views about the proposed scope and analytical approach for the review;

4 _{http://stakeholders.ofcom.org.uk/binaries/consultations/bcmr08/summary/bcmr08.pdf}

http://stakeholders.ofcom.org.uk/binaries/consultations/bcmr08/statement/statement.pdf

5

See the Statement at [8.12]

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(b) conducted market research, which included holding discussions with industry stakeholder and user groups, and analysed data provided by CPs in response to OFCOM’s formal requests for information;

(c) published its provisional findings and proposals to address the concerns it had identified about the extent of competition in the provision of leased lines in the UK in June 2012 (the “June BCMR Consultation”)7;

(d) published its proposals to apply charge controls to certain services provided by BT in these markets in July 20128;

(e) published a further consultation setting out some changes to its proposals following a review of the responses to the June BCMR Consultation and further discussions with industry stakeholders in November 20129; and

(f) notified its draft Statement containing OFCOM’s provisional conclusions to the European Commission, the Body of European Regulators of Electronic Communications (“BEREC”) and national regulatory authorities of other Member States in February 2013.

12. OFCOM raised the issue of passive remedies in the CFI and in some detail in the June BCMR Consultation.

13. The CFI read as follows on passive remedies:

“1.47 In the last BCMR, a number of CPs also asked us to consider the introduction of a passive remedy such as dark fibre or physical infrastructure access (i.e. duct and pole sharing). We concluded at that time that it was not appropriate to impose such a remedy. However, many stakeholders have already asked Ofcom to consider this issue again, especially in the light of Ofcom’s recent decision to require Passive Infrastructure Access (“PIA”) as a remedy in the market for Wholesale Local Access.

1.48 We are therefore inclined to look at whether passive remedies could provide, in some or all cases, an effective means to foster competition in infrastructure. We would consider the full implications of the introduction of passive remedies, including: 7 _{http://stakeholders.ofcom.org.uk/consultations/business-connectivity-mr/} 8 http://stakeholders.ofcom.org.uk/consultations/llcc-2012/ 9 _{http://stakeholders.ofcom.org.uk/consultations/bcmr-reconsultation/}

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• what benefits would a passive remedy provide to competition and business connectivity and other retail consumers?

• would the introduction of passive remedies lead to the removal of regulation of downstream wholesale active remedies?

• if passive remedies were to be introduced alongside active remedies, what may be the implications for cost recovery and the effectiveness of existing active remedies?

Question 18: What are your views on the role that passive remedies could play in this market for the promotion of downstream competition? In your view, what implications might adoption of passive remedies have on the provision of active remedies?”

14. Colt did not respond to the CFI.

15. The June BCMR Consultation addressed passive remedies at paragraphs 8.39 - 8.95. This included an analysis of the case for imposing passive remedies, which took into account points raised by stakeholders in response to the CFI, and also set out OFCOM’s provisional conclusions on the case for passive remedies. OFCOM summarised the potential benefits of passive remedies (such as the potential to stimulate competition by lowering barriers to entry for competitors who invest in infrastructure) and the risks as it saw them at that stage.

16. These risks included duplicative investment and the possibility of inefficient entry. OFCOM explained the risks in the June BCMR Consultation as follows:

“8.61 Introducing passive remedies would also carry significant risks. Investment in fibre-based networks is subject to strong economies of scale, and, while passive remedies could reduce barriers to competition based on infrastructure, any such additional competition they stimulate may not be sustainable outside some dense geographic clusters of businesses, such as major urban centres.

8.62 At the same time, introducing passive remedies in business connectivity markets could lead to inefficient competitive entry. For example, the current charge control delegates to BT, within certain constraints, the ability to decide how to recover its common costs across the charge-controlled services. In practice, BT recovers proportionately more of its common costs from higher-bandwidth products.”

17. The risk that passive access would be used in areas where the rewards were greater (such as in urban centres and for higher-bandwidth products) triggered a concern about BT’s common cost recovery and price rises for customers. This concern was explained in the June BCMR Consultation as follows:

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“8.63 Furthermore, introducing passive remedies in business connectivity markets could have wider implications on the recovery of common costs that underpins the current pricing of all of BT’s regulated products. Extending the example above, BT may respond to competitive entry based on passive remedies by reducing its charges for higher bandwidth services. This may, in turn, require rebalancing of the recovery of BT’s common costs, which may lead eventually to an increase in its charges for other regulated services, not only for those used in business connectivity markets but potentially also for others, such as local loop unbundling and wholesale line rental. Therefore, while current regulations continue to apply to existing services, the opportunity for BT’s competitors to use a passive remedy could be most attractive when delivering high-bandwidth services, not because those competitors could necessarily do so more efficiently than BT, but because of the way that BT had decided to recover its common costs.”

18. After analysing the specific issues raised by stakeholders regarding the possibility of better outcomes for consumers with passive remedies, OFCOM came to the following provisional conclusion:

“8.94 Our current view is that the case of passive remedies is weak because:

• While we recognise that it is possible that passive remedies could improve the prospects for competition generally, our analysis of the cases put forward by stakeholders suggests that the potential benefits that could flow from doing so could to a large extent be achieved by imposing alternative remedies such as price controls on BT’s provision of active wholesale access services.

• At the same time, we consider that imposing passive remedies in leased lines markets, either in isolation or in combination with active remedies, could carry significant risks of worse outcomes than continuing to impose active remedies alone, including

o adding significantly to the cost of competition in leased lines markets;

o encouraging inefficient entry;

o narrowing the promotion of competition to the provision of high-bandwidth (and high revenue-generating) products and/or the provision of leased lines services in dense geographic clusters of businesses (such as major urban centres);

o increasing the charges paid by the majority of end-users of leased lines services;

o undermining the recovery of common costs that underpins the current pricing of all of BT’s regulated leased lines products. 8.95 We therefore consider that in the leased lines markets in which we propose that BT has SMP, we should not impose passive remedies.”

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“Do you agree with our approach to remedies and in particular our consideration of the case for imposing passive remedies?”10

20. In its response to the June BCMR Consultation, Colt took issue with OFCOM’s rejection of passive remedies. Members of the CP Group also submitted responses to the consultation.

B. SMP findings and remedies

21. In the Statement, OFCOM defined various product and geographic markets and made SMP findings in relation to some of them. OFCOM also introduced a package of remedies to address the competition concerns it identified. In summary (so far as is relevant for our judgment):

(a) OFCOM found that BT had SMP in various retail and wholesale markets for leased line services in the UK, including:

(i) most wholesale Traditional Interface Symmetric Broadband Origination (TISBO) markets, excluding Hull and (for the most part) the Western, Eastern and Central London Area (“WECLA”)11;

(ii) the wholesale Alternative Interface Symmetric Broadband Origination (AISBO) markets, excluding Hull12; and

(iii) the wholesale Multiple Interface Symmetric Broadband Origination (MISBO) market in the UK, excluding the Hull area and WECLA13.

(b) OFCOM imposed on BT various access remedies for active products (i.e. including electronics) in the wholesale markets in which it was found to have SMP, with the stated purpose of promoting competition in the long term at the wholesale level based on investment in economically efficient

10 _{June BCMR Consultation, Annex 5, Question 13} 11 _{Statement at [1.28]}

12

Statement at [1.29] - [1.30]

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alternative infrastructure, and supplemented by seeking to ensure that CPs could compete effectively elsewhere in downstream markets by using regulated access to BT’s wholesale services.14

(c) OFCOM imposed a charge control on BT, but decided not to impose passive remedies.

22. The SMP remedies imposed in the Statement took effect from 1 April 2013, and were to run for three years.

C. The Decision not to impose passive remedies

(i) Overview

23. At the time OFCOM commenced the BCMR, the wholesale leased lines market had only hitherto been subject to active remedies, not passive remedies. OFCOM’s reasons for deciding not to impose passive remedies in this market review were principally set out in section 8 of the Statement.

24. OFCOM’s analysis was summarised in the Introduction to the Statement:

“1.40 We have also considered the case for imposing an alternative or additional set of requirements known as passive remedies, such as requiring BT to provide access to its ducts, poles or dark fibre. We have decided not to impose such passive remedies.

1.41 We recognise that it is possible that the imposition of passive remedies in leased lines could support competition in downstream markets. However, imposition of passive remedies is likely to be inconsistent with important aspects of the package of remedies which we are imposing, including the form of the charge controls. We therefore needed to decide which of the two alternative approaches is likely to be more consistent with securing or furthering our statutory duties.

1.42 We have considered the potential benefits that imposition of passive remedies could deliver. Some CPs have argued, for example, that the pace of innovation could be increased in some parts of the market. However, it is not clear to us that the competition issues we have identified in leased lines would be addressed more effectively in the round by the imposition of passive remedies than by our current approach to remedies. Our analysis suggests that the specific benefits put forward by stakeholders of imposing passive remedies could, to a large extent, be achieved by imposing alternative remedies such as price controls on BT’s provision of wholesale leased lines services. At the same time, we consider there are significant

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risks that the imposition of passive remedies could lead to worse outcomes for consumers and for competition.

1.43 Facilitating the transition from the current regulatory regime to one where competition based on passive remedies is sustainable and effective would require a significant degree of regulatory support and intervention and, potentially, changes to the definition of the regulatory boundaries and role of Openreach.

1.44 At present we have seen no evidence that any CPs would invest substantially in infrastructure based on passive remedies if we were to impose them in leased lines markets. Furthermore, we have seen no evidence that imposing passive remedies in leased lines markets would, as some stakeholders have claimed, unlock significant new investments in fixed next-generation access (NGA) infrastructure for consumer superfast broadband services.

1.45 In conclusion, while imposition of passive remedies is likely to require significant regulatory changes and intervention, and we would therefore need clear evidence to persuade us that this would be justified, it is not clear at present that imposing passive remedies would lead to better market outcomes in the round than the package of remedies we have decided to impose. We have therefore decided not to impose passive remedies.”

(ii) Section 8 of the Statement

25. In section 8, OFCOM set out its full analysis of passive remedies. After giving a slightly fuller summary (at paragraphs 8.1 - 8.9) than that given in the Introduction to the Statement, OFCOM set out the factual background (at paragraphs 8.10 - 8.17) and then described the consultation process (at paragraphs 8.18 - 8.50), including the responses to the CFI of April 2011 and the June BCMR Consultation document, together with OFCOM’s observations on those responses.

26. OFCOM referred to comments by most leading CPs, including Colt itself. In general, mobile network operators (“MNOs”) were strongly in favour of passive remedies to increase availability of backhaul (the links between MNOs’ cell sites and core networks). Vodafone’s response argued that passive remedies were the only way to create the conditions to ensure “ubiquitous high speed and rich data coverage”.15

27. Several respondents referred to the bandwidth-related gradient of BT’s wholesale pricing (that is the pricing structure by which BT recovered different proportions of

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its common costs from different value services).16 The likely effect of passive remedies on BT’s bandwidth gradient was acknowledged, but the balance of view was that benefits of competition outweighed this risk. The effects on alternative infrastructure investment and duplication were also referred to, and the likely enhancement of innovation was stressed by many (paragraphs 8.60 - 8.72).

28. OFCOM expressed the following views on these responses in section 8:

(a) Responses varied on whether OFCOM should have imposed passive remedies, and on the extent of the role that they could have had in supporting competition in leased lines (paragraph 8.39).

(b) Pricing would have been a key factor in CPs’ incentives to use passive access and OFCOM may have had to intervene to set the access price (paragraphs 8.41 - 8.43).

(c) Passive remedies may have been “inconsistent” with the parameters and design of the charge controls OFCOM was imposing and, if so, these would have had to be changed (paragraph 8.43).

(d) To ensure a level playing field for CPs, it may have been necessary to change the role of Openreach17 to include the provision of passive remedies on the basis of equivalence of inputs (“EoI”) (paragraph 8.44).

(e) Given CPs’ incentives to invest in passive remedies where BT recovered a relatively high proportion of its common costs, there may have been adverse effects on BT’s ability to recover those common costs (paragraph 8.45).

16 _{Mr Culham for Ofcom explained the bandwidth gradient in his first witness statement as}

follows at [25]:

“The current tariff structures for leased lines generally involve higher bandwidth services making a greater contribution to the recovery of common costs than lower bandwidth services. To put the point another way, the tariff gradient in relation to bandwidth exceeds the gradient of marginal cost in relation to bandwidth. However, charges for additional increments of bandwidth are generally substantially less than proportional to the amount of extra bandwidth purchased (i.e. there is a reduction in average price per unit of bandwidth for higher bandwidth services, so for example a 1Gbit/sec circuit is priced at a significant discount to 10 x 100Mbit/sec circuits).”

17 _{Openreach is the name given to the separate BT division created as a result of the 2005}

Telecommunications Strategic Review to provide wholesale services to BT and third parties on equivalent terms (“Equivalence of Inputs” or “EoI”).

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(f) After a period of transition, passive remedies would have been expected to replace some or all active remedies to avoid OFCOM regulating “concurrently and indefinitely at multiple levels of the value chain” (paragraphs 8.46 - 8.47).

(g) Parallels with the passive remedy imposed on BT in the wholesale local access market18 were misplaced (paragraphs 8.48 and 50).

(h) Overall, moving from active to passive remedies would have required much regulatory support and intervention, potentially including changes to important aspects of current regulation. OFCOM therefore considered that it needed concrete evidence that the outcome would have been better (paragraph 8.49).

29. OFCOM then posed two questions: first, whether competition based on passive remedies would be more effective and, second, what was the likelihood that passive remedies would be used.

30. OFCOM’s views on these two questions (expressed as “considerations” in section 8) contain the essence of its final decision on passive remedies. Having first expressed its understanding of the essential benefit of passive remedies (i.e. “lowering barriers to entry for competitors who invest in infrastructure”)19, OFCOM rehearsed its views on:

(a) duplication of investment (paragraphs 8.77- 8.79);

(b) the pricing of passive access, efficient entry, BT’s pricing flexibility and scope of sustainable competition (paragraphs 8.80 - 8.92);

(c) the effect on investment in alternative infrastructure (paragraphs 8.93 - 8.94);

18

See paragraph 9 above

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(d) competition in the delivery of mobile backhaul (paragraphs 8.95 - 8.100); and

(e) innovation (paragraphs 8.101 - 105).

31. The longest section is that referred to at paragraph 30(b) above - the pricing of passive access, efficient entry, BT’s pricing flexibility and the scope of sustainable competition. In that section, OFCOM discussed in some detail the concerns it had previously raised about the likely incentives and motives of those wanting passive access, the likely need for a regulated uniform access price, the effect this would have on BT’s ability to recover its common costs, and the importance OFCOM attached to BT’s ability to “vary relative charges within the charge control basket”20 for the active remedies prescribed elsewhere in the Statement, together with the likely impact on prices outside densely populated urban centres.

32. OFCOM accepted there was a risk that BT would seek to price abusively (a risk that some CPs thought would be lessened by passive remedies), but preferred to deal with this, if necessary, by further refinements to the active price controls. The design of charge controls through sub-caps and/or separate product baskets would, in OFCOM’s view, lead to a more efficient outcome.

33. OFCOM’s summarised its views on the balance of benefits and risks in imposing passive remedies as follows:

“8.106 Overall, it is not clear that imposing passive remedies would lead to better market outcomes in the round than the package of remedies we have decided to impose in this review. We recognise that passive remedies could bring some benefits in the leased lines markets. In particular, imposing passive remedies could:

• stimulate competition in a greater part of the value chain in regions where full infrastructure competition is unlikely to emerge by lowering barriers to entry; and

• provide more scope for product innovation and service differentiation in some cases.

8.107 We consider, however, that the package of remedies which we have decided to impose could achieve similar outcomes, and that passive remedies could also:

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• lead to inefficient duplication of investment adding to the overall costs in the industry;

• encourage inefficient investments;

• undermine existing, and discourage future, infrastructure investments; and

• lead to changes in the way BT recovers its common costs which may not necessarily be more efficient and could lead to higher end-user prices where services are not exposed to competition.”

34. Having then considered the extent of demand for passive remedies, OFCOM set out its overall conclusions on passive remedies (paragraphs 8.129 - 8.132). These repeat the reasoning contained in the body of section 8, referring to:

(a) the major departure involved in adopting passive remedies;

(b) the effect on the existing regulatory system; and

(c) the need for concrete evidence of a better overall outcome and that CPs would use passive remedies to increase competition.

35. The conclusion itself was as follows:

“8.132 After due consideration, we have decided not to impose passive remedies. This is because:

While we recognise that competition based on passive remedies may deliver some benefits, we believe that similar benefits could also be delivered by imposing active remedies and price controls. It is also not clear that imposition of passive remedies would lead to better market outcomes in the round than the remedies we are imposing in this review.

There is no evidence that CPs would invest substantially in competition based on passive remedies if they were available in the forward-looking period of this review.

At the same time, imposing passive remedies in leased lines markets could carry significant risks of worse outcomes than continuing to impose active remedies alone, including:

o adding significantly to the cost of competition in leased lines markets;

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o raising end-user prices of services other than high-bandwidth products and/or of services other than those provided in areas containing dense clusters of businesses (such as urban centres); o rebalancing the charges paid by the end-users of leased lines services

- so that some end-users would pay less while potentially many others would pay more - without necessarily achieving greater efficiency; and

o undermining investments that have already been made in alternative infrastructure.”

III. THE REGULATORY FRAMEWORK

36. The UK regulatory regime underwent a substantial, European Union (“EU”) driven, change in 2003. In that year, the UK implemented five EU communications directives (Directive 2002/21/EC (“the Framework Directive”), Directive 2002/19/EC (“the Access Directive”), Directive 2002/20/EC (“the Authorisation Directive”), Directive 2002/22/EC (“the Universal Service Directive”) and Directive 2002/58/EC (“the Privacy Directive”)). The first four of these directives were implemented in the UK by the Act. The fifth, the Privacy Directive, is not material for the purposes of this judgment. We refer collectively to these directives as “the Common Regulatory Framework”.

37. The new regulatory regime introduced an obligation on National Regulatory Authorities to carry out reviews of competition in communications markets to ensure that regulation remained appropriate in the light of changing market conditions. In essence, this process involved: (a) a definition of the relevant market or markets; (b) an assessment of competition in each market, and in particular whether any companies had SMP in a given market; and (c) an assessment of the appropriate regulatory obligations that should be imposed where there was a finding of SMP.

38. We were referred to a number of provisions of the Common Regulatory Framework in these proceedings. Where necessary, we refer to these provisions, but we do not propose to re-quote the passages cited to us. Rather, we describe the regime under the Act - which implemented the Common Regulatory Framework - and is the domestic source of OFCOM’s power to impose SMP remedies.

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39. The UK’s National Regulatory Authority is OFCOM. As noted, OFCOM is required to define relevant markets in the communications sector in the UK, and analyse whether those markets are effectively competitive.

40. OFCOM’s power to set binding conditions, including SMP conditions, is contained in section 45 of the Act. Section 46 sets out the persons to whom conditions may apply. SMP conditions can be applied to a CP that OFCOM has found to have SMP in a specific market (section 46(7) - (8)), provided that the following tests (set out in section 47(2)) are met:

“(a) objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [(but this paragraph is subject to subsection (3))];

(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(c) proportionate to what the condition or modification is intended to achieve; and

(d) in relation to what it is intended to achieve, transparent.” 41. In addition, OFCOM must consider:

(a) its general duties in section 3 of the Act, which include duties to further the interests of citizens in relation to communications matters and to further the interests of consumers in relevant markets, where appropriate by promoting competition; and

(b) its duties for the purpose of fulfilling EU obligations in section 4 of the Act, which include a duty to act in accordance with the six Community requirements, the first of which is a requirement to promote competition in relation to the provision of electronic communications networks and electronic communications services.

42. Section 87 of the Act identifies the various types of condition that OFCOM may impose where it has made an SMP determination in an identified market. It provides as follows (so far as is relevant here):

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“(1) Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

(b) apply those conditions to that person. (2) This section applies to—

(a) a person who provides a public electronic communications network; and (b) a person who makes available facilities that are associated facilities by reference to such a network.

(3) This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects— (a) the provision of network access to the relevant network;

(b) the use of the relevant network; and (c) the availability of the relevant facilities.

(4) In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

(a) the technical and economic viability [(including the viability of other network access products, whether provided by the dominant provider or another person)], having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

(b) the feasibility of the provision of the proposed network access;

(c) the investment made by the person initially providing or making available the network or other facility in respect of which an entitlement to network access is proposed [(taking account of any public investment made)];

(d) the need to secure effective competition [(including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition)] in the long term;

(e) any rights to intellectual property that are relevant to the proposal; and (f) the desirability of securing that electronic communications services are provided that are available throughout the member States.”

43. As can be seen from section 87(3), there is a specific power to set SMP conditions that impose passive remedies. It was not disputed that the reference to “relevant

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facilities” included physical assets used to provide communications services, including ducts and fibre.

44. Decisions made under Part 2 of the Act (which includes decisions to set SMP conditions under section 87) can be appealed to the Tribunal pursuant to the statutory regime set out in sections 192 - 195 of the Act.

IV. THE GROUNDS OF APPEAL

45. The overarching issue we are required to decide in this appeal is whether OFCOM properly considered whether it could and/or should have imposed a passive remedy.

46. In summary, Colt contended, in its Notice of Appeal, that:

(a) Ground 1: OFCOM was wrong to view passive and active remedies as

necessarily alternatives and to reject passive remedies as a result. There was nothing in economic theory, law or practical experience to suggest that they could not co-exist, indefinitely if necessary. The particular practical issues identified by OFCOM were of no real significance.

(b) Ground 2: OFCOM erred as a matter of law and/or assessment in not

proceeding from the starting point that it should regulate as far upstream as possible. Economic theory strongly favoured regulating as far as possible up the value chain because it would increase competition and innovation. This was also reflected in the relevant legislation and in OFCOM’s previous statements.

(c) Ground 3: OFCOM was wrong as a matter of assessment to believe that

active remedies were likely to promote innovation and competition at least as effectively as passive remedies. Consistent with what would be expected on the basis of economic theory, there was evidence to show that there were substantial benefits that could only be achieved with passive remedies and not active remedies. The concerns raised by OFCOM as to the possible adverse consequences of passive remedies were without justification.

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(d) Ground 4: OFCOM was wrong as a matter of fact and/or assessment to

reject passive remedies on the basis of a supposed lack of demand for them. OFCOM was wrong as a matter of fact to say that there was no evidence of demand as there was plenty of such evidence but, in any event, it was wrong of OFCOM to insist on evidence of demand as a condition precedent to the imposition of passive remedies.

47. During the hearing, Colt re-ordered its grounds of appeal in order to address Ground 4 before Ground 2. We adopt the same approach in this judgment, addressing the grounds in the following sequence: 1, 4, 2 and 3. Despite Colt having raised four separate grounds of appeal in its Notice of Appeal, we found there was much overlap between them. We therefore address the allegations made by Colt within the ground in which they seem most appropriately to arise.

48. We are grateful to the parties for having narrowed the issues of dispute between them during the course of proceedings. As we explain in the context of each ground, the significance of Grounds 1 and 4 was much reduced by the time we came to hear the case, and Ground 3 emerged (so it seemed to us) as the nub of Colt’s case. Accordingly, a significant proportion of this judgment centres on Ground 3.

49. Colt submitted that the errors identified in its Notice of Appeal were individually and collectively of sufficient importance wholly to vitiate OFCOM’s decision to refuse passive remedies. It requested that we set aside the Decision and direct OFCOM to:

(a) require BT to provide CPs with access to its ducts and dark fibre for the purpose of, inter alia, providing business connectivity services: (i) at cost-oriented prices; and/or (ii) on fair, reasonable and non-discriminatory (“FRAND”) terms including charges; or

(b) reconsider and/or re-consult on its decision on passive remedies in accordance with such directions as we consider appropriate.

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50. The parties filed a considerable amount of witness evidence during these proceedings. Some of these witnesses were called to give oral evidence, and almost half of the four-day hearing was taken up by cross-examination. Colt and BT (intervening in support of OFCOM) both filed witness and expert evidence; OFCOM and the CP Group both filed witness, but not expert, evidence. We have considered the witness and expert evidence carefully and are grateful in particular to the following individuals for giving oral evidence at the hearing: Mr Kieron McCann (Colt’s Director of Strategy and Planning); Mr Andrew Reid (Chief Network Services Strategist within BT’s Technology Services & Operations Division); Dr Andrew Lilico (Chairman and Principal Consultant at Europe Economics; instructed by Colt); Mr Peter Culham (OFCOM’s Chief Economist); and Dr Daniel Maldoom (a founding partner of the economic consultancy DotEcon Ltd; instructed by BT). Whilst the evidence was - for the most part - helpful, our findings draw on only a handful of the witnesses and it is therefore unnecessary to comment upon many of the individual witnesses or to set out our assessment of them.

V. THE PRINCIPLES APPLICABLE ON AN APPEAL PURSUANT TO

SECTION 192(2) OF THE ACT

51. As we have noted, OFCOM’s decision to set SMP conditions - including its decision not to impose passive remedies - was taken under section 45 of the Act and, as such, is appealable under section 192(1)(b) of the Act. Section 195(2) of the Act requires that section 192 appeals (such as this) are to be decided “on the merits and by reference to the grounds of appeal set out in the notice of appeal”.

52. The ambit of the Tribunal’s full merits review jurisdiction in section 192 appeals is now well established following a number of judgments of the Tribunal and the Court of Appeal.

53. In Hutchison 3G UK Limited v OFCOM [2008] CAT 11, the Tribunal stated at

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“However, this is an appeal on the merits and the Tribunal is not concerned solely with whether the 2007 Statement is adequately reasoned but also with whether those reasons are correct. The Tribunal accepts the point made by H3G in their Reply on the SMP and Appropriate Remedy issues that it is a specialist court designed to be able to scrutinise the detail of regulatory decisions in a profound and rigorous manner. The question for the Tribunal is not whether the decision to impose price control was within the range of reasonable responses but whether the decision was the right one.”

54. We agree with this summary of the approach we should take. Nonetheless, it is clear that the Tribunal is not intended to act as a “duplicate regulatory body waiting in the wings just for appeals”, as Jacob LJ made clear in T-Mobile (UK) Limited v Office of Communications [2008] EWCA Civ 1373 at [31].

55. Further, this appeal raises a complex question of regulatory and economic judgment and we are conscious that there may be no single “right answer”, as Moses LJ emphasised recently in Everything Everywhere Limited v OFCOM (Mobile Call Termination) [2013] EWCA Civ 154 (an appeal from a Competition Commission decision, but which is equally relevant to the Tribunal) at [35]:

“The subject matter of the appeal is a complex question of economic judgment. It involves questions of policy in a highly technical field. The regulator, [OFCOM], and the Competition Commission are required to make educated predictions for the future as to the effect of any price control measure to be imposed. Although decisions relating to the control of charges are of great importance to communication providers and to the general public, the exercise of seeking an appropriate solution is necessarily imprecise; when looking to the future, there is unlikely to be any one right answer.”

56. The Court of Appeal also addressed the nature of the Tribunal’s task and the weight that should be given to value judgments by the regulator in Telefónica O2 UK Limited v OFCOM [2012] EWCA Civ 1002 at [67]:

“Thus, the question is whether the regulator was right in its decision on the merits, but the appeal body’s consideration of that is not necessarily confined to material that was before the regulator. The question on the merits, however, is the same as was (or should have been) addressed by the regulator, and if the regulator has addressed the right question by reference to relevant material, any value judgment on its part, as between different relevant considerations, must carry great weight.” 57. Where there are a number of competing, legitimate views, there is a very clear line

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interfere in a regulator’s decision unless it is clearly wrong.21 In its recent judgment

in Mobile Call Termination (cited at paragraph 55 above), the Court of Appeal

confirmed that it is not enough for an appellant to show that there is a “real risk that the decision was wrong”.22 It must show that the decision itself was wrong:

“25. It is for an appellant to establish that Ofcom’s decision was wrong on one or more of the grounds specified in s.192(6) of the [Act]: that the decision was based on an error of fact, or law, or both, or an erroneous exercise of discretion. It is for the appellant to marshal and adduce all the evidence and material on which it relies to show that Ofcom’s original decision was wrong. Where, as in this case, the appellant contends that Ofcom ought to have adopted an alternative price control measure, then it is for that appellant to deploy all the evidence and material it considers will support that alternative.

24. The appeal is against the decision, not the reasons for the decision. It is not enough to identify some error in reasoning; the appeal can only succeed if the decision cannot stand in the light of that error. If it is to succeed, the appellant must vault two hurdles: first, it must demonstrate that the facts, reasoning or value judgments on which the ultimate decision is based are wrong, and second, it must show that its proposed alternative price control measure should be adopted by the Commission. If the Commission (or Tribunal in a matter unrelated to price control) concludes that the original decision can be supported on a basis other than that on which Ofcom relied, then the appellant will not have shown that the original decision is wrong and will fail.”

58. Finally, the Tribunal must decide by reference to the grounds of appeal. As referred to in the above extract from the Court of Appeal’s judgment in Mobile Call Termination, section 192(6) of the Act requires that:

“The grounds of appeal must be set out in sufficient detail to indicate ... to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and ... to what extent (if any) the appellant is appealing against the exercise of discretion by OFCOM ...”

59. We are therefore required to review OFCOM’s decision on the basis of those specific errors of fact, errors of law and/or the wrong exercise of discretion which were alleged by Colt in its grounds of appeal.

21

See for example: T-Mobile (UK) Limited v OFCOM (Termination Rate Disputes) [2008] CAT 12 at [82], Albion Water Limited v Water Services Regulation Authority [2008] CAT 31 at [72], British Telecommunications plc v OFCOM(080) [2011] CAT 24 at [230], Telefónica UK Limited v OFCOM [2012] CAT 28 at [45] and British Sky Broadcasting Limited & Ors v OFCOM [2012] CAT 20 at [84]

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VI. GROUND 1: PASSIVE AND ACTIVE REMEDIES AS ALTERNATIVES

A. Colt’s case

60. Whilst the focus of Colt’s first ground of appeal shifted during the course of proceedings, we understood there to be two key aspects. First, Colt challenged the Decision on the basis that OFCOM was wrong to view active and passive remedies as necessarily alternatives, rather than complementary remedies, as a matter of principle. Secondly, Colt argued that the Decision had resulted from an internal fait accompli, that OFCOM was prejudiced, and that its arguments regarding practical difficulties preventing the imposition of a dual regulatory approach were flawed.

61. The first aspect of Ground 1 narrowed considerably during the course of proceedings. Counsel for Colt explained to us during the hearing that:

“the way things have shaken out in the form of the pleadings and the skeleton arguments, that proposition [that passive remedies and active remedies can co-exist in principle] is not actually controversial”.23

62. Accordingly, Colt moved away from its original formulation of Ground 1, focussing instead on the way in which OFCOM had approached the question of whether or not active and passive remedies could be applied at the same time. Nonetheless, it maintained at the hearing that it was entirely reasonable for it to have understood from the Statement that OFCOM had viewed active and passive remedies as alternatives.

63. In light of the narrowing of the issues, the second aspect of Ground 1 took on an increased significance. In essence, Colt argued that OFCOM’s approach revealed an internal “fait accompli” as no real analysis had taken place as to how active and passive remedies might be applied concurrently in practice. Rather, Colt said - in its skeleton argument - that OFCOM took as its starting point the “price controls it was already intent on imposing as an active remedy”. Counsel for Colt put it this way at the hearing:

“it must stand to reason that either [OFCOM] had already decided that the active remedies would be sufficient and they were not going to change them, or, at the least, when formulating their final concluded view, they have not done any

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analysis to work out whether or not that conceptually acceptable bilateral approach to remedies would work.”24

64. In seeking to persuade us that OFCOM had not approached the issue of the possible concurrent application of active and passive remedies with an open mind, Colt took us to various documents from the consultation process. As set out at paragraph 11 above, OFCOM’s consultation included - among other things - the CFI, the June BCMR Consultation and meetings with stakeholders.

65. In relation to the CFI, Colt attempted to suggest that OFCOM had inadequately expressed its thinking on passive remedies, such that respondents were unable to submit a proper response. Referring to one consultee’s response, Colt contended that at least one “experienced market operator” had failed to understand what OFCOM said were its primary concerns about passive remedies.

66. In relation to the June BCMR Consultation, Colt contended that OFCOM had already made up its mind against passive access. Part of the evidence Colt relied on in support of this claim was the file note of a meeting between OFCOM and a particular CP, which took place prior to the June BCMR Consultation. The file note records that OFCOM explained that it “was not actively seeking to impose passive remedies” and that it “did not intend to grapple with the issue in depth in the Statement”. Nonetheless, OFCOM clearly stated that it “intended to include the debate in the June BCMR Consultation in order to gain the views of stakeholders before making any decision”.

67. Colt also took us to passages in the Statement, which it said demonstrated an internal fait accompli, such as paragraph 8.5, which read as follows:

“However, imposition of passive remedies is likely to be inconsistent with important aspects of the package of remedies which we are imposing, including the form of the charge controls. In other words, imposition of passive remedies would be likely to be part of an alternative, rather than a complement, to that package of remedies. In reaching the decisions in this Statement, we therefore needed to decide which approach we considered would be likely to be more consistent with securing or furthering our statutory duties.”

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68. At the hearing, Colt contended that OFCOM had made an error of law by: (a) not asking itself the right question (i.e. how might active and passive remedies co-exist?); and (b) failing to take into account a material consideration - that is, that active and passive remedies could, in principle, co-exist.25 Both of these arguments had been given minimal attention, if any, in Colt’s Notice of Appeal and skeleton argument.

69. A further aspect of Colt’s Ground 1 (as originally pleaded) was that the practical difficulties identified by OFCOM of imposing passive remedies were of no real significance. The practical difficulties identified in the Statement included:

(a) the need to make adjustments to the charge controls OFCOM intended to impose (paragraph 8.43);

(b) the need to remove some or all active remedies and the resulting period of transition in which active remedies are restructured (paragraphs 8.46 - 8.49); and

(c) the additional regulatory action necessary to make a remedy requiring passive access to be offered effective (paragraphs 8.43 - 8.44).

70. Colt contended, in its skeleton argument, that OFCOM’s reasoning here was predicated on “administrative convenience”, which was not a good reason for declining to exercise its statutory discretion.

71. In addition, Colt criticised OFCOM’s reasoning regarding the purported lack of demand for passive remedies. However, given the overlap with Ground 4 on this issue - which is primarily focussed on demand arguments - we address demand in relation to Ground 4 below.

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B. OFCOM’s response

72. OFCOM explained that it had never doubted that active and passive remedies could be combined but, rather, it decided against passive remedies because of specific economic and practical considerations.

73. OFCOM maintained that it had approached the question of whether passive remedies should be introduced with an open mind, rejecting the allegations made against its approach in the CFI, the June BCMR Consultation and the Statement.

74. OFCOM further argued that Colt’s argument regarding “administrative convenience” was a mischaracterisation of its approach. Rather than rejecting passive remedies because of the practical difficulties that their implementation would bring - as Colt appeared to assume OFCOM had done - OFCOM actually considered the decisive factor underlying its Decision to be whether or not passive remedies would lead to a better overall outcome. In other words, OFCOM considered whether to introduce passive remedies notwithstanding the resulting regulatory changes. By way of support for this position, OFCOM pointed us to the paragraphs in the Statement which address the risks of introducing passive remedies. These risks included inefficient duplication of investment, inefficient investment, undermining existing and discouraging future infrastructure investments, failure to recover efficiently incurred common costs, and higher prices for end users.

C. BT’s view

75. BT, intervening in support of OFCOM, stated that Ground 1 was based on a misreading of the Decision, describing Colt’s arguments as being directed at a “straw man”. BT also argued that OFCOM was correct to require clear incremental benefits before intervening at multiple levels of the value chain.

D. The Tribunal’s analysis

76. As the parties did not dispute at the hearing that OFCOM did not treat passive and active remedies as necessarily alternatives, there is little for us to say about the first aspect of Ground 1. In light of the attention devoted to this point in the pleadings,

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however, we note that we understand how the references in the Statement to passive remedies being “part of an alternative to the package of remedies [OFCOM] is imposing”26 may have given Colt an erroneous impression. Indeed, the European Commission’s questions to OFCOM about the Statement suggest that it was of the same view. Nevertheless we see no substance in Colt’s claim on this point. We now turn to the second aspect of this ground.

77. Having carefully considered the CFI, the June BCMR Consultation and the responses thereto, we find no error in how OFCOM expressed its provisional views on passive remedies.

78. As regards the CFI, this document explained that OFCOM was considering the benefits that passive remedies could bring, whether they would remove regulation of downstream wholesale active remedies and what the implications for “cost recovery” and the effectiveness of existing active remedies would be (as extracted in full at paragraph 13 above). The CFI then asked stakeholders for their views on the role that passive remedies might play in the business connectivity market for the promotion of downstream competition and what the implications might be for active remedies. Colt did not respond to the CFI, although several CPs did. These responses are summarised in the Statement at paragraphs 8.20 - 8.25.

79. Whilst with hindsight this part of the CFI might have been drafted more clearly, we do not have any particular difficulty in understanding from the CFI that OFCOM had concerns about the implications of passive remedies for “cost recovery”, among other things. The responses to the CFI from other consultees show that they also grasped this aspect of OFCOM’s analysis. In any event, OFCOM held meetings with stakeholders which would have gone some way to clarify any confusion (as it appears to have done in the case of the particular respondent Colt referred to) and the main BCMR consultation was yet to come.

80. Turning to the June BCMR Consultation, this document included an analysis of the case for imposing passive remedies, which took into account points raised by stakeholders in response to the CFI, and also set out OFCOM’s provisional

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conclusions on the case for passive remedies (see paragraphs 15 - 19 above). OFCOM asked stakeholders whether they agreed with its approach to remedies and, in particular, its “consideration of the case for imposing passive remedies”. In response, Colt submitted an 18 page document, which addressed various aspects of the consultation, including passive access. Colt also met representatives of OFCOM in December 2012, where it took advantage of the opportunity to make its concerns about passive access known. These concerns were summarised by OFCOM in the Statement at paragraphs 8.55 - 8.56.

81. It is apparent to us that OFCOM was leaning away from passive remedies when it published the June BCMR Consultation. However, that is not to say that its mind was closed, or that there was an internal fait accompli. OFCOM set out the possible benefits of passive remedies, as well as the risks, and opened the debate up to stakeholders. By setting out its provisional conclusion on passive remedies, OFCOM was transparent about its thinking and invited stakeholders to provide responses which may have led OFCOM to reconsider its position. Those stakeholders made submissions on OFCOM’s preliminary reasoning, which were summarised and analysed in the Statement. Although several stakeholders called for passive remedies to be introduced, OFCOM was not persuaded away from its provisional view that the case for doing so was weak.

82. It is of course essential that a regulator engages in genuine consultation, and is willing to reconsider its provisional decision in light of the responses it receives. However, a regulator is entitled not to be persuaded by calls to move away from its provisional viewpoint if, in its judgment, the responses are not convincing. Whilst Colt may understandably be disappointed that it did not bring OFCOM round to its way of thinking during the consultation, the fact that OFCOM did not change its mind is not evidence in itself of an internal fait accompli.

83. As regards the Statement itself, although the reasoning is not always as clear as it might be, it is sufficient to demonstrate that OFCOM was alive to the potential benefits of passive remedies, but - having analysed the potential risks such remedies entailed - did not consider these to outweigh the possible downsides. We see no basis in the extracts to which we have been pointed to find that, in relation to the

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possible coexistence of active and passive remedies, OFCOM had reached an internal fait accompli.

84. We are similarly not persuaded that OFCOM failed to “ask itself the right question” (as Colt’s counsel put it) or that it failed to take into account a material consideration (see paragraph 68 above). There was no error on either point. This is demonstrated by the following:

(a) OFCOM did not treat active and passive remedies as necessarily alternatives;

(b) consultees were able to raise possible complementary remedies packages - which included both active and passive remedies - due to the open nature of the consultation; and

(c) OFCOM did give some thought to how active and passive remedies could work alongside each other. This can be seen from the Statement at paragraphs 8.80 - 8.85 in particular, where OFCOM considered how passive remedies might be priced. For example, OFCOM expressed its concerns about pricing passive remedies at a flat rate:

8.82 [...] a single flat rate charge for passive access may need to be set, on a basis such as BT’s average FAC, for example, and this could have a number of undesirable consequences.

8.83 First, the charges could give excessive incentives to use passive access because CPs could find that the sum of the charge for passive access and the costs of their equipment were lower than the charge for BT’s equivalent wholesale service even where using passive access increases total costs, which would be inefficient.

8.84 Secondly, if BT lost many sales of its high-margin wholesale leased lines services then BT as a whole may fail to recover its common costs. In response to the potential that this may happen then, thirdly, where BT would face competition from CPs which invest using passive remedies, it may reduce the prices of its wholesale services relative to the charge for passive access, and raise other charges. Thus, the availability of PIA at a single flat rate charge would tend to produce the same flat structure in charges for active services. ... These potential undesirable consequences further support our view that passive remedies would be likely to be part of an alternative to the package of remedies we are imposing, rather than a complement.”

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85. Whilst it is evident that OFCOM had doubts about the extent to which active and passive remedies could be combined, it considered whether the benefits of passive remedies were sufficient to justify their introduction. On balance, OFCOM concluded that passive remedies did not offer sufficient benefits. Accordingly, it decided that it was not worth conducting the very considerable exercise required to come up with a package which included both active and passive remedies in this review. OFCOM was entitled to exercise its regulatory judgment to reach this decision and we see no reason to interfere with it.

86. Colt’s “administrative convenience” point appears to be substantially the same as the internal fait accompli argument we have dismissed above, and we dismiss it for the same reasons. To the extent that this part of Ground 1 involves a substantive assessment of the risks of passive remedies (which may relate to their practical difficulties), we address this under Ground 3 below.

87. For the reasons set out above, Ground 1 falls to be dismissed.

VII. GROUND 4: DEMAND FOR PASSIVE REMEDIES

A. Colt’s case

88. Colt asserted that OFCOM’s conclusion on the absence of evidence of potential investment in infrastructure based on passive remedies was “patently incorrect as a matter of fact”. The relevant part of the Statement is as follows:

“8.125 Responses we received to the CFI and to the June BCMR Consultation, and our engagement with the industry, revealed no evidence that any CP would invest substantially in infrastructure based on passive remedies over the forward looking period of the review if we were to impose them in leased lines markets.” 89. In particular, Colt contended that: (a) OFCOM was factually wrong to say there was

no evidence of demand for passive remedies; (b) had OFCOM properly raised its concerns with Colt, further evidence could have been provided; and (c) in any event, the imposition of passive remedies should not have been made contingent on a fully substantiated business case from a known market participant.

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90. Colt also argued that the consultation on this point had been procedurally unfair as Colt and other CPs were not given adequate opportunity to provide input on the minimum amount and certainty of investment required to justify the introduction of passive remedies. Colt attributed this flaw to OFCOM having “set its mind against permitting passive access”. To the extent that this challenge overlaps with Colt’s “fait accompli” argument, we have already addressed this in Ground 1 above.

B. OFCOM’s response

91. OFCOM denied that it had erred either in its factual assessment or in the process that it applied. As to the factual error alleged by Colt, OFCOM did not dispute that there was interest in the introduction of passive remedies from certain stakeholders. However, as it found in the Statement, this was not a sufficient evidential basis to conclude that substantial infrastructure investment would follow. During the hearing, OFCOM took us to several consultation responses which provided an insight into the nature of the demand for passive remedies:

(a) One respondent noted that it regarded passive remedies as having “niche complementary application to the current wholesale offerings” and that, in “certain, and limited situations”, they would be beneficial. However, it did not expect a switch “en masse” from existing products to Passive Infrastructure Access (“PIA”).

(b) At least two other respondents indicated that they did not want passive remedies for their own use, but rather so that other CPs could purchase them.

(c) Several CPs said they wanted passive remedies on the assumption that they would be offered on uniform regulated prices. In some cases, this appeared to stem from a wish to be “free from the price/bandwidth gradient associated with BT circuits”.27 This, said OFCOM, indicated that one of the drivers of demand for passive remedies was the arbitrage opportunities28 a uniform price would provide.

27

See paragraph 27 above

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92. As to the alleged procedural unfairness, OFCOM referred to its extensive consultation process. It asserted that, throughout this process, it had approached the question of whether to impose passive remedies with an open mind, and explained clearly the nature of its concerns.

93. OFCOM further suggested that Colt had over-emphasised the importance of OFCOM’s reasoning on demand for its overall Decision: a willingness to make substantial infrastructure investments was not a sufficient condition for imposing passive remedies, said OFCOM, but was merely a relevant matter for it to take into account. At the hearing, counsel for OFCOM explained in the following terms why any error in its reasoning on demand was immaterial:

“In any event, Ofcom’s consideration of planned investment levels was, we say, separate from and additional to the balancing exercise which it had already undertaken in deciding whether passive remedies were, on balance, a good thing. It was, if you like, a sort of final stage cross check. Any error in relation to the prospects for investment, or indeed any error on Ofcom’s part in considering that that was a relevant consideration to take into account, would be immaterial, we say, if Colt could not also show an error in Ofcom’s prior balancing of potential benefits and detriments.”29

C. BT’s view

94. BT characterised Colt’s arguments on this ground as an assertion that the mere fact that there were incentives for it to invest should have been enough to satisfy OFCOM that there would be demand for passive remedies. BT rejected this assertion as wrong as, it said, Colt had failed to establish that OFCOM was not entitled to have regard to the lack of evidence of substantial investment. Moreover, BT rejected Colt’s claim that it had a viable case for using passive access.

D. The Tribunal’s analysis

95. Contrary to Colt’s claims, OFCOM did not conclude in the Decision that there was no evidence of demand for passive remedies. Rather, OFCOM stated that the consultation “revealed no evidence that any CP would invest substantially in infrastructure based on passive remedies” (emphasis added). Further, OFCOM actually referred to evidence of demand in the Statement, including Colt’s investment plans and its position that passive remedies could have an effect on

PETER FREEMAN CBE QC (HON) (Chairman) CLARE POTTER JOANNE STUART OBE. Sitting as a Tribunal in England and Wales COLT TECHNOLOGY SERVICES

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